Children are the future? The impact of delay upon the fairness of youth justice

July 16, 2020

By Eddison Flint

Turning 18 has serious consequences for Defendants in criminal proceedings. The delays within the British criminal justice system are well known and far reaching and the global pandemic has only sought to exacerbate these problems. This is a brief examination of the consequences youths face when being sentenced over the age of 18.

Under Section 37 of the Crime and Disorder Act 1998 “It shall be the principal aim of the youth justice system to prevent offending by children and young persons.” The Sentencing Council make a point that it is important to avoid “criminalising children and young people unnecessarily”[1] – Clearly, punishment is more of a last resort. Conversely, one of the five prescribed purposes of sentencing adults under the Criminal Justice Act 2003 is the punishment of offenders.[2]

When a child turns 18 before the date of conviction the following protections are lost:

• Loss of anonymity under Section 45 Youth Justice and Criminal Evidence Act 1999;
• Reduced likelihood of diversion;
• Loss of youth sentencing options;

If a Defendant turns 18 after an offence but before conviction, a sentencing court has the power to deal with them, having in mind a starting point akin to that of a child.[3] Importantly however, certain sentences that aid in the rehabilitation of youths namely youth cautions, referral orders and youth rehabilitation orders are not available

Following the Supreme Court’s ruling in R (on Behalf of P,G and W) v Secretary of State [2019] UKSC 3, in July 2020 it was announced that proposed changes are to be debated in parliament, allowing youth cautions to be withheld from enhanced DBS checks, thus aiding children in their rehabilitation through limiting potential bars to future employment.

It is apparent that in the current climate of UK justice, turning 18 years old post-offence but pre-conviction can be of grave significance to a Defendant, particularly one of previous good character, as such, delays in charging may have lifelong consequences.

With the global pandemic, as has been widely publicised, delays in the justice system are growing longer and longer. If the primary focus of youth justice is truly geared towards rehabilitation and the reduction of future offending, it is important that cases where the 18 year old threshold is close, the cases be dealt with expeditiously with all parties working to ensure that the primary aim of the youth justice system is being adhered to in a less adversarial way.

[1] Sentencing Children and Young People Overarching Principles and Offence Specific Guidelines for Sexual Offences and Robbery – Definitive Guideline

[2] Section 142 (1)(a) Criminal Justice Act 2003.

[3] R v Ghafoor [2002] EWCA Crim 1857